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Nomane v Anggo (No 3) [2003] PGNC 15; N2495 (14 November 2003)

N2495

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 52 OF 2002

BETWEEN:

JIM NOMANE

Petitioner

AND:

DAVID ANGGO

First Respondent

AND:

REUBEN KAIULO – THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA – (No. 2)

Second Respondent

GOROKA: GAVARA-NANU, J

2003: 11TH & 14 NOVEMBER

PARLIAMENT – Election petition – Objection on grounds of qualification – Organic Law on National and Local Level Government Elections (Organic Law) s.46(4) – Elector’s right once enrolled on a Common Roll for an electorate continues until lost – No further need for such elector to apply for re-enrolment on the Common Roll for the same electorate.

PARLIAMENT – Election petition – Qualification of a candidate – Name of a candidate in the Common Rolls not quite the same as the name used in the Nomination Form – But the names belong to the candidate – Elector identification numbers are consistent as being for the candidate – Candidate in such circumstances is validly enrolled elector thus is qualified to contest the national elections and to petition the election result.

Cases cited:

Daniel Don Kapi v Takai Kapi & Electoral Commission – SC548.

Takai Kapi v Daniel Don Kapi & Electoral Commission – SC570.
Jimson Sauk Papaki v Don Pomb Pullie Polye & Electoral Commission – SC644.

Other cases cited:
Kean v Kerby [1920] HCA 35; (1920) 27 CLR 449.

Counsel:

A. Manase for the Petitioner.

C. Copeland for the First Respondent.

R. Williams for the Second Respondent.

RULING ON QUALIFICATION

14th November 2003

GAVARA-NANU J. This is an application by the first respondent to have the petition dismissed on the grounds that the petitioner has no standing as he was not an elector registered on the Common Roll for the Chuave Open electorate.

The first respondent has in support of his application tendered the 2002 Common Roll for the Chuave Open electorate and the affidavit by Mr Ray William, sworn 2nd March, 2003. In the 2002 Common Roll for the Chuave Open electorate, the name appearing is Jim Josiah with Elector ID No. 3398507. The year of birth given for Jim Josiah is 1949 and his occupation is stated as a subsistence farmer. The month and the date of birth are not given in that Common Roll.

The only Annexure to Mr William’s affidavit is the Nomination Form signed by the petitioner to contest the 2002 national elections for the Chuave Open electorate. The name appearing on the petitioner’s Nomination Form is Jim Nomane and the date of birth given for the petitioner is 1st September, 1959, and his occupation is stated as an engineer.

It is the contention of the respondents that the petitioner is not enrolled on the Common Roll for the Chuave Open electorate because the name, occupation and the year of birth given for Jim Josiah, in the 2002 Common Roll for the Chuave Open electorate are different to the name, occupation and the date of birth the petitioner gave in his Nomination Form to contest the 2002 national elections for the Chuave Open electorate. But the petitioner says the name Jim Josiah on the 2002 Chuave Open electorate Common Roll is his.

The second respondent did not call evidence, but adopted and supported the submissions made by the first respondent/applicant and argued that the petition should be dismissed.

The petitioner/respondent gave oral evidence and called two other witnesses. One of those witnesses is the District Administrator for Chuave, who was the Returning Officer for the Chuave Open electorate in the 2002 national elections. The other witness was the Assistant Returning Officer for the Chuave Open electorate in the 2002 national elections. He is the one who received the petitioner’s nomination for the 2002 national elections.

The petitioner has also produced other documentary evidence and filed two affidavits.

In his oral evidence, the petitioner told the Court that he is from Laiya village and comes from the Nomane Sub-Clan, in the Chuave District of the Chimbu Province. He said Laiya is in the Siane Local Level Government. He has lived in Laiya village for his entire life, except for the periods when he had to attend school and work, away from the village. He said, he is an engineer by profession, but he is also a subsistence farmer because back in his village, he has gardens and animals. He said, he is commonly known as Jim Nomane Josiah in the village, but the locals call him Jim Nomane, because it is easier for them.

The petitioner said, he contested the 1992 national elections under the name Jim Nomane. The first respondent also contested that election. The petitioner also contested the 1994 by-election under the same name Jim Nomane. He has produced an election poster he used for the 1992 national elections. The name in that election poster is Jim Nomane.

The petitioner runs an electrical business in Goroka, under the name ‘Blue Sky Electrical.’ He has produced some documents under that business name. The documents relate to his Income Tax with the Internal Revenue Commission. There are five documents. They are Exhibits "C1 to C5". The name appearing in "Exhibit C1", which is the Certificate of Compliance (Income Reporting System), has the name Jim Nomane Josiah. The name appearing in "Exhibit C2", which is another Certificate of Compliance (Income Reporting System), has the name Josiah Jim Nomane. In "Exhibits C3 to C5", which are correspondences with the Internal Revenue Commission, the name appearing in those documents is also Josiah Jim Nomane.

The petitioner has filed two affidavits sworn by him on 3rd and 30th January 2003, respectively. The Annexure "A" to the affidavit sworn 30th January, 2003, is page 374 of the 1992 Common Roll for the Chuave Open electorate. It is for Laiya and the Sub-Clan is Nomanena. The name on that Common Roll is Jim Nomane, and the occupation given there is subsistence farmer.

In the affidavit, he says, he is widely known as Jim Nomane Josiah. He also uses this name for his business. The people in the business circle know him as Jim Josiah but the villagers call him Jim Nomane. He says, he contested the 1994 national by-election and the 2002 national elections under the name Jim Nomane. In other words, he stood as a candidate for the 1992, 1994 and 2002 national elections for the Chuave Open electorate under the name Jim Nomane. Of these, his 1992 election poster corroborates his claim that he stood for that election under the name Jim Nomane.

However, on the 1999 and 2002 Common Rolls for the Chuave Open electorate, the name enrolled is Jim Josiah.

In paragraph 10 of his affidavit, he says, on the 2002 Common Roll up-date for the Chuave Open electorate, he enrolled his full name, Jim Nomane Josiah. He has produced part of that Common roll up-date, where that name appears. It is the Annexure "C" to his affidavit. It is an official electoral document. This claim has been corroborated by Mr Kairi, the Returning Officer for the 2002 national elections for the Chuave Open electorate and the District Officer for Chuave. Mr Kairi said, he prepared this Common Roll up-date (Annexure "C") and the name Jim Nomane Josiah was enrolled and was subsequently submitted to the Electoral Commission, but for some reason, the middle name Nomane was left out on the 2002 Common Roll for the Chuave Open electorate.

The petitioner said the 2002 Common Roll for the Chuave Open electorate was released only weeks before the polling, so neither he nor the electoral officials had the chance to correct the error that was on the 2002 Common Roll for the Chuave Open electorate regarding the omission of his middle name.

The petitioner says, he has met all the requirements to qualify him to be a candidate for the Chuave Open electorate as outlined in the Returning Officers’ Manual. The relevant part of that Manual is Annexure "D" to the petitioner’s affidavit, sworn 30th January 2003. This Annexure is a page from the Manual and the relevant paragraph is 3.2. There, eight requirements are listed which the person wanting to contest the elections must meet.

Requirement number 4 is the crucial one, because it says, the person must be entitled to vote in the national elections to be a candidate. In other words a candidate for the national elections must be a voter duly enrolled on the Common Roll for the particular electorate. And that is the point of contention here. The petitioner says, he is a voter duly enrolled on the Common Roll for the Chuave Open electorate, and therefore has met that requirement.

It is not in dispute that except for the 1992 Common Roll, which has the petitioner’s name Jim Nomane, the 1999 and the 2002 Common Rolls for the Chuave Open electorate have the name Jim Josiah. This name is different to Jim Nomane, which is the name the petitioner used for his 2002 nomination, but it is the same name as the name appearing on the 1992 Common Roll.

It is also not in dispute that in the 2002 Common Roll up-date, the petitioner gave his full name Jim Nomane Josiah. This is established by Annexure "C" to the petitioner’s affidavit. This name change was confirmed by Mr Kairi. The petitioner was also given a new Enrolment Elector ID Number in that up-date which is 33938507.

The petitioner has also produced the Master List of voters for the Siane Local Level Government in the Chuave Open electorate. Again the name appearing there is Jim Josiah. The Master List of voters is up to 29th May 2001.

The principal argument by the respondents is that because the name appearing on the 1999 and 2002 Common Rolls and the Master List of voters for the Chuave Open electorate is Jim Josiah, that person cannot be the same person as Jim Nomane, which is the name appearing in the petitioner’s Nomination Form for the 2002 national elections for the same electorate.

The respondents have in support of their contentions referred to the cases of Daniel Don Kapi v Takai Kapi and Electoral Commission - SC548 and Jimson Sauk Papoki v Don Pomb Pullie Polye and the Electoral Commission - SC644.

In Daniel Don Kapi v Takai Kapi and Electoral Commission (supra), the applicant applied for the review of the decision of the National Court sitting in its electoral jurisdiction. The applicant was the runner up to the first respondent in the 1997 national elections. He disputed the election of the first respondent saying that, the first respondent was not enrolled on the Common Roll for the Wabag Open electorate as a voter and therefore could not qualify to stand as a candidate for that electorate. At the trial, the judge found that the first respondent did enrol on the Common Roll for the Wabag Open electorate and was therefore entitled to contest the elections. The petition was therefore dismissed.

Upon review by the Supreme Court of the trial judge’s decision, the grounds generally were that the judge erred in law in finding that the first respondent was enrolled on the Common Roll for the Wabag Open electorate.

The evidence before the trial judge was that the first respondent had sought to be enrolled as a voter in the Wabag Open electorate by completing the appropriate application form which was accepted by the Returning Officer at Wabag. The Returning Officer then placed the applicant’s name on the records kept at Wabag as having applied to be enrolled on the Common Roll. The evidence suggested that the application was then forwarded to the Electoral Commission headquarters in Port Moresby for inclusion in the Principal Roll of voters for the electorate. However, according to the first respondent, due to errors by the Electoral Commission, his name, ‘Takai Kapi’ was not enrolled on the Common Roll for the Wabag Open electorate.

At the trial, it was not in dispute that the first respondent’s name, Takai Kapi, did not appear at all on the Common Roll for the Wabag Open electorate.

However, the first respondent claimed that his name may have been on the Common Roll as "Tarak Joeri", although it was in evidence that, that name was for a female voter.

Thus there was no evidence at all before the trial judge that, the first respondent’s name was enrolled on the Common Roll for the Wabag Open electorate.

The Supreme Court held that there was too much confusion over the name "Tarak Jeori" for the trial judge to find that the applicant was in fact enrolled on the Common Roll for the Wabag Open electorate under that name. And the trial judge made no ruling as to whether, "Tarak Jeori", was the first respondent. The trial judge however, found on the evidence of the Returning Officer that the first respondent had done all that was necessary to be enrolled on the Common Roll as a voter. This appears to be the basis upon which the trial judge found for the first respondent. It is to be noted that the trial judge did find that the first respondent’s name was not enrolled on the Common Roll for the Wabag Open electorate.

The Supreme Court quashed the trial judge’s decision. The Supreme Court also found that the application for enrolment by the first respondent was late, because it was made six days after the Writ was issued. This, the Supreme Court said was in breach of s.60 (a) of the Organic Law.

Section 60 (a) of the Organic Law is in these terms:

60. TIME FOR ALTERING ROLLS.

Notwithstanding anything in this Law: -

(a) claims for enrolment received after 4 pm on the day of the issue of the writ for an election shall not be registered until after the end of polling period for the election.

A by-election was ordered as a result.

In the subsequent Supreme Court case of Takai Kapi v Daniel Don Kapi and Electoral Commission - SC570, the applicant raised another matter, which he argued should have been decided in his favour in EP No. 75 of 1997, in which the first respondent successfully petitioned his election.

In that case, the applicant argued that the National Court should have found that he was duly enrolled as a voter on the 1992, Common Roll for the Wabag Open electorate. Thus by virtue of s.46 (4) of the Organic Law, he did not need to re-enrol on the Common Roll for the same electorate. He tried to produce a document in support of his claim, but the first respondent objected strongly on the grounds of undue delay, abuse of process, attempt to rely on matters which were not before the trial judge and res judicata and issue of estoppel.

The Supreme Court said:

"In a generic way, it would appear Takai Kapi, is raising the same issue. That is, the Supreme Court said he was not qualified to be elected whereas he says he was qualified. But closer look at the argument would show that neither the Supreme Court nor the applicant is in error in law. That is, he says he was on the Electors Roll in 1992, as such, he needed not re-enroll. As a matter of law, he is correct. That is, what s.46(4) of the Organic Law says and an Australian High Court decision in Kean v Kerby [1920] HCA 35; (1920) 27 CLR 449, also supports this view.

Section 46(4) says:

"Notwithstanding anything in subsection (3), where an elector is enrolled in respect of an address in an electorate for which he is entitled to be enrolled, he shall not be required to sign and send in any further claim for enrolment in connection with the preparations of a new Roll under this section."

The head note in Kean v Kerby reads:

"An electoral roll is a constant record of enrolment, and a valid claim for enrolment having been made, the claimant is entitled to be on the roll until his right to be there is lost..."

The law, that is s.46(4), is so clear that no Court would deliberately violate it.

Further, the evidence is so clear that Takai Kapi had the majority votes and unless attacked on some other reasons like bribery etc, he has the peoples’ Constitutional wish to be their member of the Parliament.

However, the next question is whether we should deal with this issue. We think that the appropriate Bench to have dealt with this issue would have been the Bench constituted in SCR 88 of 1997. Had the issue of 1992 Common Roll, and the application of s.46(4) of the Organic Law been directed to the attention of that Court the decision as a matter of law might have been different. In saying that of course, we assume that the name Takai Kapi is on the 1992 Roll. That is a matter of evidence. Similar issue was raised in 1994 Roll, but the trial judge was not satisfied, that he was on the Roll, because the name referred to as his was the name of a female.

At the end, we are of the view that it was incumbent upon Takai Kapi to raise the issue of 1992 Common Roll, as an alternative argument and the application of s.46(4) of the Organic Law before the Bench in SCR 88 of 1997. Instead, he remained tight lipped wishing for a wind fall. As he had a "free ride" he cannot now be allowed to abuse the process. We therefore, refuse his application."(my underlining).

The essence of the Supreme Court ruling there was, if the applicant had indeed been enrolled as a voter on the 1992 Common Roll, then, as a matter of law, he had it right that, there was no further need for him to be re-enrolled on the Common Roll for the same electorate. And therefore, had he raised the issue before the Supreme Court Bench in SCR 88 of 1997, he could have succeeded. The Supreme Court also said that the applicant should have raised s.46(4) of the Organic Law before that same Bench.

In that regard, the Supreme Court cited with approval the Australian High Court decision in Kean v Kerby (supra), and said, that the decision there supported s.46(4) of the Organic Law.

The respondents also placed reliance on another Supreme Court decision in Jimson Sauk Papaki v Don Pomb Pullie Polye and Electoral Commission - SC644. In that case, the applicant challenged the decision of the National Court which upheld the petition by the first respondent and declared the applicant’s election as the Member of Parliament for the Kandep Open electorate invalid.

On review by the Supreme Court, the applicant, Jimson Sauk Papaki challenged the qualification of the first respondent Don Pomb Pollie Polye as a voter. The applicant argued that the first respondent lacked standing because he was not a voter as he was not enrolled on the Common Roll for the Kandep Open electorate and therefore could not bring the petition.

The first respondent there, nominated as a candidate for the Kandep Open electorate in the name Don Pomb Pullie Polye, from Kokosa village. But the undisputed evidence was that, that name did not appear on the Common Roll either in respect of a person from Kokosa village, or any where at all in the electorate.

At the trial, the judge accepted the first respondent’s evidence that he was in fact one and the same person Don Pela of Giva Rest House, a subsistence farmer. He said, he used the name Don Pela in schools and tertiary institutions. This was shown by school and tertiary education certificates, and the driver’s licence.

The Supreme Court said:

"But whether the first respondent is in fact truly Don Pela or not is of no consequence for the electoral process. The law is clear. A person not enrolled as an elector cannot vote and cannot be a candidate for election. This Court made that clear in Application of Takai Kapi – SCR 88 of 1997. Therefore, since the clear evidence before the trial judge was that there was no person in the name of the first respondent recorded in the Common Roll for the Kandep Open Electorate, the Petitioner was without standing and could not be heard. The only conclusion that the Court could have come to was to strike the petition out. In failing to do so, the National Court acted outside its jurisdiction." (my underlining).

The Supreme Court went on to declare the petition by the first respondent before the National Court invalid and declared the applicant before the Supreme Court as having been validly elected and was reinstated as the Member of Parliament for the Kandep Open electorate.

It is noted that the Supreme Court in that case, adopted the decision in Takai Kapi -v- Daniel Don Kapi and Electoral Commission (supra).

I must say here, that I found the arguments by all three counsel forceful, especially by the counsel for the first respondent. I therefore had to consider the submissions very carefully as they apply to the law. This required very close look at the cases referred to by counsel and the evidence adduced.

The issue raised here is the threshold issue and therefore, it had to be carefully and properly determined. Thus, it has taken the time it deserved to take for me to finally arrive at the decision, which I will now announce.

Applying the laws as stated by the Supreme Court in the cases I have referred to, I am of the firm view that the facts and the circumstances of this case can be distinguished from those cases.

In the case of Daniel Don Kapi -v- Takai Kapi and the Electoral Commission (supra), the first respondent was not enrolled on the Common Roll for the Wabag Open electorate at all. In other words, he was not enrolled as a voter at all. Therefore, it was clear that he could not stand as a candidate. The first respondent, argued that, a registered voter by the name of Tarak Jeori was him, but that was rejected because that was a name of a female voter. The only evidence he could rely on was his application to the Returning Officer in Wabag, where he sought to be enrolled. And his application was said to have been forwarded to the Electoral Commission headquarters in Port Moresby for the name Takai Kapi to be enrolled on the Common Roll for the Wabag Open electorate, but the name was never enrolled on the Common Roll. The Supreme Court held that in those circumstances, he was not qualified to stand as a candidate for the Wabag Open electorate.

In the case of Jimson Sauk Papaki v Don Pomb Pullie Polye (supra), it was the same. The name Don Pomb Pullie Polye was not enrolled on the Common Roll for the Kandep Open electorate at all. The name Don Pela of Giva Rest House, which the trial judge found was the same person as Don Pomb Pullie Polye was quashed by the Supreme Court saying, the name Don Pom Pullie Polye was not on the Common Roll for the electorate, therefore he could not qualify to contest the national elections.

The case of Daniel Don Kapi v Takai Kapi and Electoral Commission (supra), was also decided on the same principle. The Supreme Court, said, that apart from the first respondent applying for enrolment on the Common Roll six days after the issue of the Writ, which was in breach of s.60 (a) of the Organic Law, his name was not enrolled on the Common Roll for the Wabag Open electorate at all. The fact that he had applied to be enrolled on the Common Roll, and that his application was forwarded to the Electoral Commission headquarters for his name to be enrolled on the Common Roll for the Wabag Open electorate, was of no consequence, because there was no evidence at all that his name was on the Common Roll. He therefore, could not qualify to contest the Wabag Open electorate.

As I said, those cases are clearly distinguishable from the present case. In this case, there is the unchallenged evidence that the petitioner was duly enrolled as a voter on the 1992, Common Roll for the Chuave Open electorate. This point has not been denied or challenged by the respondents. It is fundamental to the petitioner’s claims. Therefore, it was properly raised by the petitioner and it has to be determined. The name enrolled on the 1992 Common Roll is Jim Nomane. He has produced his 1992 national election poster in which he used the name Jim Nomane, to support his claim.

Thus applying the law as stated in Takai Kapi v Daniel Don Kapi and Electoral Commission (supra), the fact that the petitioner was enrolled on the 1992 Common Roll for the Chuave Open electorate, as Jim Nomane is sufficient for him to qualify as a voter in that electorate, even now. That is the effect of s.46 (4) of the Organic Law. And according to this section, the petitioner was not required to sign and send any further claim for enrolment on the Common Roll for the Chuave Open electorate, because he had already enrolled on the 1992 Common Roll for that electorate. And applying the principle in Kean v Kerby (supra), the 1992 Common Roll is the constant record of the petitioner’s enrolment for the Chuave Open electorate, which is a valid claim for enrolment and having once been enrolled, he is entitled to be a voter. That right of the petitioner is still continuing and is current.

This means, the subsequent enrolments made on the 1999 and 2002 Common Rolls for the Chuave Open electorate, under the name Jim Josiah are of no consequence for the electoral process, because the law, which is s.46 (4) of the Organic Law, is clear. Having once been enrolled on the 1992, Chuave Open electorate Common Roll, as long it is for the same address and electorate, that right to vote in that electorate, still exists. The evidence shows that the petitioner is a voter in Laiyer Rest House, in the Siane Local Level Government in the Chuave Open electorate. These are the same address and electorate for which he was enrolled on the 1992, Chuave Open electorate Common Roll.

I also find that the petitioner was enrolled on the 1999 and 2002 Common Rolls for the Chuave Open electorate. He says, he is the same Jim Josiah named in those Common Rolls. I am satisfied on the evidence that he is the same person. In other words, the name Jim Josiah in those Common Rolls is his name. The reason for this is significant. The name Jim Josiah on the 1999 and 2002 Common Rolls for the Chuave Open electorate is consistently identified by the Elector ID Numbers for the petitioner. The petitioner’s Elector ID Numbers leave no doubt in my mind that the name Jim Josiah in those Common Rolls is for the petitioner. For instance, on the 1999 Common Roll, the Code Number given to Jim Josiah is 192. Next to the name Jim Josiah is the name Mary Josiah with Code Number 193. The occupation for Jim Josiah there is subsistence farmer, and the occupation for Mary Josiah is ‘HD’. I note from that Common Roll that ‘HD’, is the common occupation given to the female voters. These are voters in Laiyer in the Siane Local Level Government in the Chuave Open electorate.

In the Master List of voters for the Chuave Open electorate, the name Jim Josiah has the Elector ID Number 3017906. Next to Jim Josiah is the name Mary Josiah with Elector ID Number 3017907. Then on the 2002 Common Roll up-date Summary, the Master List of voters ID Number given for Jim Nomane Josiah is 3017906 with the new Enrolment Elector ID Number 3398507. Then next to Jim Nomane Josiah in the up-date Summary for 2002 Common Roll is Mary Josiah, a female. The Master List Elector ID Number for Mary Josiah is 3017907 and the New Enrolment Elector ID Number given to Mary Josiah is 398508. The 2002 Common Roll up-date Summary prepared by Mr Kairi which is Annexure "C" to the petitioner’s affidavit has 20 names, and only 4 other people apart from Jim Nomane Josiah and Mary Josiah have old Master List Elector ID Numbers, the rest are new enrolments with New Enrolment Elector ID Numbers from 3398509 to 3398514 then from 3398519 to 3398526.

Then on the 2002 Common Roll, the name is Jim Josiah with Elector ID Number 3398507. This elector ID number is the same number given to Jim Nomane Josiah on the 2002 Common Roll up-date Summary for the Chuave Open electorate. The occupation given there is subsistence farmer. Next to Jim Josiah is Mary Josiah with Elector ID Number 3398508, a female. This elector ID number is the same number given to Mary Josiah on the 2002 Common Roll up-date Summary for the Chuave Open electorate. The occupation for Mary Josiah is ‘Household Duties’. The year of birth given on 2002 Common Roll for Jim Nomane Josiah is 1949 and for Mary Josiah is 1954. But, their dates and the months of birth are not given.

It is noted that on the 1999 Common Roll, the occupation given for Mary Josiah is ‘HD’. The letters ‘HD’ there, are clarified by the 2002 Common Roll. They stand for ‘Household Duties’. The petitioner told the Court that Mary Josiah is his wife. That makes sense because their names appear next to each other with their respective Elector ID Numbers also following each other on all the Common Rolls.

It is noted that the 1999 Common Roll, the Master List of voters, and the 2002 Common Roll up-date Summary, for the Chuave Open electorate do not provide columns for dates of birth for the voters. It is provided only on the 2002 Common Roll for the same electorate.

The respondents have emphasised on the year of birth given on the 2002 Common Roll, for Jim Josiah which is 1949, as against the date of birth given by the petitioner in his Enrolment Form to contest the 2002 national elections. He gave his date of birth as 1st September, 1959.

Firstly, it appears to me that the date of birth of a voter on the Common Roll is not a mandatory requirement, as can be seen from s.45 of the Organic Law. The particulars emphasised in that section are the name, address, occupation and sex of each elector. There is no specific mention or requirement of and for the date of birth of the elector to be given. This is confirmed by s.46 (3) and (4) of the Organic Law.

Secondly, and in my view, more significantly, the petitioner told the Court that, he did not know who put 1949 as the year of his birth on the 2002 Common Roll, because his correct date of birth is 1st September, 1959, as shown in his Nomination Form for the 2002 national elections. As noted, on the 2002 Common Roll, only the year of birth for Jim Josiah is given, viz. 1949. But the date and the month of his birth are not given.

I am entitled to form my own opinion on the age of the petitioner under s.63 of the Evidence Act, Chapter No. 48; because this point is contested by the respondents.

Section 63 of the Evidence Act, provides:

"In any proceedings, if the Court does not consider that, there is evidence or sufficient evidence to determine the age of a person the Court, having seen the person, may itself determine the question."

I have observed the petitioner in the witness box and I have formed the view that he is too young to have been born in 1949. Comparing him with the other witness, Mr Kairi who when asked about his age, said, he is 52 years old now. That means Mr Kairi was born in 1951. To me, Mr Kairi looked his age and he is definitely much older than the petitioner. The petitioner does not look as old as Mr Kairi. It follows that I accept the petitioner’s evidence regarding his date of birth.

The 2002 Common Roll for the Chuave Open electorate did not include the name Nomane although the 2002 Common Roll up-date Summary for the electorate had the petitioner’s full name of Jim Nomane Josiah. That was an obvious omission by the Electoral Commission. In my view the name enrolled on the 2002 Common Roll for the Chuave Open electorate for all practical purposes was Jim Nomane Josiah, because that name was already enrolled on the 2002 Common Roll up-date Summary, with the new Enrolment Elector ID Number already given to him. The petitioner said, he claimed enrolment under the name Jim Nomane Josiah and that was confirmed by Mr Kairi. The petitioner and Mr Kairi both said, they did not know why the middle name Nomane was omitted on the 2002 Common Roll.

In any event, although the name Nomane is missing from the 2002 Common Roll, the Elector ID Number for Jim Josiah is the same number given to Jim Nomane Josiah on the 2002 Common Roll up-date Summary which is new Enrolment Elector ID Number 3398507. This is the same Elector ID Number appearing next to the name Jim Josiah on the 2002 Common Roll. This, to my mind proves beyond doubt that Jim Josiah on the 2002 Common Roll for the Chuave Open electorate with Elector ID Number 3398507, is the same Jim Nomane Josiah who is the petitioner.

I am therefore, satisfied that the petitioner is a duly enrolled voter for the Chuave Open electorate and is therefore eligible and qualified to stand as a candidate for that electorate. For that same reason, he has a standing to bring this petition.

The respondents have argued that the petitioner should have corrected the error regarding his name on the 2002 Common Roll. In that regard, I am of the opinion that no such issue arises because he had complied with the requirements under ss.60 (a) and 62 (1) (c) of the Organic Law which are relevant. In that, he had claimed for enrolment and the alteration of his name from Jim Nomane to Jim Nomane Josiah, when he enrolled on the 2002 Common Roll up-date Summary, which according to Mr Kairi was done on 28th February2002. That was well before the Writ for Chuave Open electorate was issued on 4th April, 2002. The petitioner nominated on 9th April, 2002. Thus the claim for enrolment under s.60 (a) of the Organic Law was complied with, and so was the application for alteration of name under s.62(1)(c) of the Organic Law. However, that alteration of name was not implemented by the Electoral Commission. Thus it is the omission by the Electoral Commission which resulted in the petitioner’s full name not being enrolled on the 2002 Common Roll for the Chuave Open electorate.

In any event, these points are only academic and have no consequence because by virtue of s.64(4) of the Organic Law as applied in Takai Kapi v Daniel Don Kapi and Electoral Commission, (supra), the petitioner’s enrolment as a voter on the 1992 Common Roll for the Chuave Open electorate is still current. Thus he has that continuing right to qualify him as a voter, and is therefore eligible to stand as a candidate for that electorate and to bring this petition.

The last point I wish to comment on is the person called Kevin Jim Nomane, born in 1976. The respondents have argued that this even brings more confusion, because the name is similar to the petitioner’s name. This person’s name appears on the 2002 Common Roll for the Chuave Open electorate, at page 101. The petitioner has explained that, that person is his cousin brother. He explains that in his affidavit sworn 3rd January 2002. The Annexure to that affidavit shows that there is a male person, by the name of Kevin Jim Nomane with Master List voter ID Number 307826, and the New Enrolment Elector ID Number 3403447. I have checked through the Master List of voters for the Siane Local Level Government of Laiyer and found a Kevin Jim Nomane of Nomane Sub-clan with Elector ID Number 3017826. This number corresponds with the number appearing in the Annexure to the petitioner’s affidavit. These elector ID numbers are completely different to the numbers given to the petitioner in the Master List of voters, 2002 Common Roll up-date Summary and the 2002 Common Roll for the Chuave Open electorate. I am therefore, satisfied that Kevin Jim Nomane is different from the petitioner. In any event, the petitioner appears to me to be too old for someone who was born in 1976.

For all these reasons, I am satisfied that the petitioner is duly enrolled as a voter in the Common Roll for the Chuave Open electorate, and is therefore eligible to stand as a candidate to contest the national elections for that electorate, as he had done several times in the past. And for that same reason, I am satisfied that the petitioner does have a standing and does qualify to bring this petition.

It follows that the application is dismissed.

I order the first and the second respondents to pay the petitioner’s costs in equal portions.
________________________________________________________________________
Lawyer for the petitioner : Pato Lawyers
Lawyer for the first respondent : Maladinas Lawyers
Lawyer for the second respondent : Nonggorr & Associates Lawyers